TMI Blog2000 (7) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... r, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in law in containing the order of the Commissioner of Income-tax under section 263 of the Act in respect of an order of assessment which was barred by limitation and non est in law ? 2. Whether, on the facts and in the circumstances of the case, the assessment order annexure A was passed beyond the period of limitation mentioned under section 143(2) of the Income-tax Act, 1961 ? 3. Whether the Appellate Tribunal was justified in law in holding that there was no infirmity in the order passed under section 263 and is not that conclusion perverse for the reasons mentioned in the memorandum of appeal ? 4. Whether there were materials to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner of Income-tax issued a notice dated November 5, 1996, under section 263 of the Act proposing to revise annexure A order as the same is erroneous and prejudicial to the interests of the Revenue. Rejecting the objections taken by the assessee, the respondent set aside annexure A order with a direction to the Assessing Officer to make fresh assessment in accordance with law after giving an opportunity to the assessee. This order was challenged by the assessee in appeal before the Income-tax Appellate Tribunal, Cochin Bench. Annnexure F is the appeal memorandum filed before the Tribunal. The Tribunal by order dated December 18, 1998 (annexure G), dismissed the said appeal thereby confirming the order passed by the respondent. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one year provided under the proviso to the said section. It is in this view of the matter, counsel submitted that annexure A order is without jurisdiction. Counsel further submitted that the assessee has taken a specific contention in this regard an the appeal memorandum filed before the Tribunal. But the Tribunal failed to consider the same, as evident from annexure G order. Counsel in the above circumstances submitted that this court must consider the said question in the light of the documents produced along with the appeal. Counsel for the Revenue then submitted that this is not one, of the issues agitated before the authorities and the Tribunal and, therefore, it is not open to the assessee to raise it before this court. Counsel furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter for verification. It must be noted here that under the proviso to section 143(2) of the Act, the notice is required to be served on the assessee within the period of twelve months from the end of the month in which the return is filed. So this is a matter for evidence. It is seen that the assessee has taken a specific ground in annexure F memorandum of appeal as ground No. 8 to the effect that the entire order of assessment is null and void as the notice of assessment was issued well beyond the time prescribed under the statute. It is an admitted position that this ground in the appeal memorandum was not dealt with by the Appellate Tribunal in annexure G order. As already stated, the order which is impugned in the appeal before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal, by reason of a decision On such question of law, as is referred to in sub section (1). As already noted, sub-section (6) specifically gives the power to the High Court to determine any issue which has not been determined by the Tribunal. Admittedly this court was satisfied that a question regarding the jurisdiction in passing annexure A assessment order is involved in the appeal and that is why notice was ordered on question No. 2. However, we are disabled from determining the question for the reason that all the relevant materials are not available on record, Of course, the assessee has produced annexure B notice and contends that that was the only notice issued under section 143(2) of the Act. However, we find that there is a refe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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